Personal Jurisdiction / Foreign Sovereign Immunities Act
The panel filed an order denying petitions for rehearing en banc and directing that no further petitions will be entertained, in a case in which the panel held that the district court erred in exercising personal jurisdiction over Antrix Corp. Ltd., an Indian corporation, under the Foreign Sovereign Immunities Act, because plaintiff failed to establish that Antrix had the requisite minimum contacts for personal jurisdiction.
In a statement respecting the denial of rehearing en banc, Judge O'Scannlain wrote that he agreed with the views expressed by Judge Bumatay in his dissent from the denial of rehearing en banc.
Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges Callahan, Ikuta, Bennett, R. Nelson, and VanDyke, wrote that the Foreign Sovereign Immunities Act, governing when foreign states may be sued in federal court, does not require plaintiffs to also prove "minimum contacts" to assert personal jurisdiction over a foreign state, and this court's error in holding otherwise should be corrected through rehearing en banc.
BUMATAY, Circuit Judge, joined by CALLAHAN, IKUTA, BENNETT, R. NELSON, and VANDYKE, Circuit Judges, dissenting from the denial of rehearing en banc:
Forty years ago, our court disregarded the plain language of the FSIA to add minimum contacts to the requirements for personal jurisdiction over a foreign state. And we did so using questionable interpretive moves. Today, the consensus among circuit courts squarely rejects any constitutional basis for a minimum-contacts regime. So, yet again, the Ninth Circuit stands alone. And when it comes to the law, experimentation isn't usually a virtue.
Our atextual reading creates a needless roadblock for plaintiffs seeking to assert their rights against foreign states and their agents. And we are simply incompetent to interfere in these matters of foreign affairs. Imagine requiring a state sponsor of terrorism to have minimum contacts with our country before allowing our citizens to vindicate the death or injury of a loved one at the hands of a terrorist. See 28 U.S.C. § 1605A. But that is the regime that the Ninth Circuit erects.
With no constitutional provision requiring otherwise, we should have deferred to the political branches here. FSIA plaintiffs deserve a full opportunity to litigate their cases as Congress determined. By freelancing in this area, we do the legislative process, separation of powers, and rule of law a disservice.
Faced with an opportunity to correct course, we again close the courthouse doors. And we refuse to act despite overwhelming evidence that our position is wrong. Our failure to fix our precedent is a serious mistake.
I respectfully dissent from the denial of rehearing en banc.